Posted
by
timothyon Saturday November 10, 2012 @07:52AM
from the hard-to-count-'em-all dept.

jfruh writes "In the mid-00s, more and more people started learning about Android, a Linux-based smartphone OS. Open source advocates in particular thought they could be seeing the mobile equivalent of Linux — something you could download, tinker with, and sell. Today, though, the Android market is dominated by Google and the usual suspects in the handset business. The reason nobody's been able to launch an Android empire from the garage is fairly straightforward: the average smartphone is covered by over 250,000 patents."

Okay, it's a bit of a bad joke, but the point I was making was important. People who "ignore" the patent system can get into big trouble. You end up spending far more to fix the problem after using a patent than you could have spent avoiding it. If you know of a patent then the right thing to do is to find a way to work around it. If you can't find a way to work around it then you should take some legal action around that patent. E.g. try to get it invalidated by showing prior art.

It doesn't matter. As long as you are small nobody cares about you. What matters is that, when you start to be big enough to have a commercial and / or social impact, the ability to shut you down exists.

As a non-yank, I happily gave my money to somebody like the EFF for my "USPTO - granting monopoly rights to common sense since 1860" (modulo my poor memory) T-shirt.

So, agreed, we can posture and feel superiour about a few things (very few things, alas), but we should definitely not feel complacent that just because the root of the problem is "over there" it doesn't affect us.

Many patents involved are valid outside of the USA. And there certainly are plenty of reasonable patents (i.e. actual inventions) in the mix. Not just software patents. And if you don't believe me, try building and selling your own smartphone. You'll soon enough find out about it.

It's not very different here in EU either to be frank. While most of the software "patents" are irrelevant and invalid here, the amount of hardware patents that cover both the "phone" and the "smart" part are significant enough to prevent rise of the new garage smart phone builder.

In fact, that is one of the main reasons why nokia originally didn't worry about apple and google. They figured they'd be protected by patent portfolios. FRAND and big budgets behind these companies took care of that hurdle, but s

And it's hard. And it costs a lot of money. And the market is full of very good competitors. Otherwise there's nothing stopping you.

Yeah. Are the people with the components you need even going to talk to you? I doubt Qualcomm is interested in selling you 10 LTE chips. Even if you could find all the parts you need and they already have drivers in Android, do a custom PCB layout and put it your own chassis it'll probably look and work like a cheap Chinese knock-off at a price higher than the "real thing". Forget patents, forget the FCC, is it even feasible to get a prototype up and running at a reasonable cost?

That Diversity is a necessity for innovation ?? When Steve J tinkered with small computers, there were "much better computers which do any processing job, made by IBM Corporation" around. Silly idea to even THINK about these little, powerless computers, right ?

well, we've had phones like openmoko phones.problem with them is that they're 3 generations late to the party AND STILL VULNERABLE TO LITIGATION! the reason they're not sued is that they make no money whatsoever.

the simplest way to make your own smartphone is to buy a ready smartphone package from someone and slap your own sw/hw on it. and you'll still get sued.

buying the hw is _not_ the problem. assembling it on the cheap is _not_ the problem. the article is a valid point about why despite android growing

You make some excellent points sir. Intel MIGHT save us; If they bring out the 22 nm x86 soc with hd4000 graphics (and keep being a good sport with drivers) you could run kde plasma active (pretty good touch os) and have a monstrous amount of working programs. Wireless modem would still be an issue. Case could potentially be crowd sourced into something half sexy (although your never going to be able to compete on thinness and probably not materials). Although it will undoubtedly cost more to make each unit

And it's hard. And it costs a lot of money. And the market is full of very good competitors. Otherwise there's nothing stopping you.

Yeah. Are the people with the components you need even going to talk to you? I doubt Qualcomm is interested in selling you 10 LTE chips. Even if you could find all the parts you need and they already have drivers in Android, do a custom PCB layout and put it your own chassis it'll probably look and work like a cheap Chinese knock-off at a price higher than the "real thing". Forget patents, forget the FCC, is it even feasible to get a prototype up and running at a reasonable cost?

If you piece the parts from another phone, then the you are using chips that have already had it's "fee" paid. Of course, you can't sell it as a new phone, but i'm sure you can get around laws that way. No laws against selling a used phone, no laws saying you can't take your phone apart and use the pieces for whatever.

It's suspicious that nobody has ever created ANY hardware open source project with anything like the success of Linux or any of the top tier open source projects (or the middle tier). And nobody has ever created a hardware open source project at all that covers something as ambitious as a smartphone.

If we had a bunch of successful open source hardware projects for all kinds of things and smartphones were a notable omission the patent theory might have some merit, but it looks much more like there are other

Patents won't touch you if you make 1-10 units.
Other manufacturers won't consider you as worthwhile to legislate against since you most likely won't make any profit from those devices sold.
From US point of view, good luck getting your device FCC approved, that'll be cheap and fun process!

Nonsense. Patents apply to everybody. There's no exception for people who "only" make 1-10 units. Patents literally forbid you to tinker in your own home and then sell the item you just invented, if someone paid a fee and lodged a vague sounding description about something roughly similar already.

Nonsense. Patents apply to everybody. There's no exception for people who "only" make 1-10 units. Patents literally forbid you to tinker in your own home and then sell the item you just invented, if someone paid a fee and lodged a vague sounding description about something roughly similar already.

But the reality is that if someone only makes 1-10 units then the patent holder is exceptionally unlikely to even notice. Moreover, the cost of litigating would make the likely gain for the patent holder really miniscule.

The big barriers are that it isn't easy to do a good job of manufacturing a mobile phone without a lot of very specialized (and expensive) equipment, and that there are a lot of high-quality competitor devices out there. Chip manufacturing is not a backyard activity, and custom ICs (particularly ARM SoC) are completely the key to economic phone manufacturing. The real market barriers are damn high. (There are also legal and regulatory issues, but they don't explain why there are no such tinkerers anywhere.)

But the reality is that if someone only makes 1-10 units then the patent holder is exceptionally unlikely to even notice.

That one can get away with breaking a law isn't an excuse for doing so.

There was a time when I wanted to use an open source MPEG-4 player on our PalmOS devices at home. I actually got a patent license from MPEG LA, since there are no fees for under 100,000 units or so. I expressly told them that I'd just be doing this for personal use. They sent me the license agreements overnight. Twice a year, I've had had to report the number of units, so I duly reported one per installed build, each time I installed a build. I don't think they realized how absurdly costly this was for them. Too bad for them: I kind of hoped they'd say that with such a small number of units, they're fine with me doing it without a license.

"That one can get away with breaking a law isn't an excuse for doing so."

I'd say it depends. If what you're planning to do requires a battalion of lawyers to find out if you broke the law, then go ahead and do it, but DON'T advertise your exploit on Facebook or Twitter. It's different, however, if you're thinking of committing something that even a fifteen-year-old knows is wrong, like dumping toxic waste in a river or offing your business partner. Then you're either an idiot or a evil genius.

Either you don't know what thoughtcrime is or you don't know what patents are.

You can do all the tinkering in your own home you want. If you want to build yourself a smartphone that looks identical to an iPhone in every way, go for it. You can even go use it out on the street, and tell everyone about it. What you can't do is make them for other people. Making things (and distributing them) is definitely not thoughtcrime.

Nonsense. Patents apply to everybody. There's no exception for people who "only" make 1-10 units. Patents literally forbid you to tinker in your own home and then sell the item you just invented, if someone paid a fee and lodged a vague sounding description about something roughly similar already.

Except that patent infringement damages are going to be limited, by definition, to 100% of your revenue at most, and will be more likely around 5-20%. And so, since it will cost a company around $150,000-250,000 to file and win that patent suit, and their potential damages if they win are around $20-30, with a maximum in the hundreds, no one is going to enforce a patent over that many units.

1. This was something I meant to ask in a previous informative/. encounter with you: is that damages limit per patent, per holder of a set of patents, or for all patents infringed? It's one thing if you're violating only a few patents, but the article makes the claim that a smartphone is covered by a quarter-million of them. If I get sued by a hundred, a thousand or ten thousand different patent holders....

2. Another thing I've noticed is slashdot posters who are claiming they are specifically being told b

1. This was something I meant to ask in a previous informative/. encounter with you: is that damages limit per patent, per holder of a set of patents, or for all patents infringed? It's one thing if you're violating only a few patents, but the article makes the claim that a smartphone is covered by a quarter-million of them. If I get sued by a hundred, a thousand or ten thousand different patent holders....

Per device type... Since patent damges are limited to a reasonable royalty, you can't very well pay 10% royalties to one hundred people. So, when the 10th patent owner comes around, you say "I'm already paying x% to these 9 guys... all that's left for you is y%." Yes, this means that the first patent owner who sues you will get the biggest bite of the pot, but that encourages speedy resolution of suits. Additionally, you can return to court to rejudge damages and get your royalty payments reduced if it turn

So basically you're saying that the system is OK because in an absurdly artificially restricted case you could potentially do it illegally without getting caught? OK, maybe technically (that's true of any crime), but that's not what normal people mean at all when they discuss things like this, nor is that an even meaningful hypothetical. (You can also get away with visiting a prostitute if you don't get caught or smoking a doobie if you don't get caught, but that's not relevant when normal people discuss whether it's morally valid or a positive or negative thing for these things to be illegal.)

How many patents cover assembling a PC from parts, installing your own OS on it, and selling those? Anybody have a list or something? Genuinely curious.

----

On a separate, possibly unrelated note, yet another of my silly dreams: right to access and tinker with the BIOS (or whatever the technical term is).

I understand you might part with that right if you have the item subsidised, but after the contract ends, the root rights must flow back to you.

Oh, and root rights should always be available on an unsubsidised device; the whole "warranty will be void" shtick doesn't fly with me. I mean on my PC, it would be void if I over-clocked it or whatever, not because I installed Linux instead of windows; similarly, warranty should not be voided simply because you change a ROM, only if you use an over-clocking app.

What you want is CoreBoot http://www.coreboot.org/. The big difficulty in porting to a new platform is the lack of documentation in order to do the low level bit twiddling to bring the hardware up to a known good state (especially the memory controller if I remember correctly). I have been meaning to have a go once I get a few items off my plate...

The basic PC architecture goes back to the IBM PC of 1981, long enough ago for those patents to have expired. What you're looking at now will be patents covering individual hardware components - hard drive head designs, chip layout techniques, that sort of thing. I imagine there are more than a few trivial ones in there too, but as you're only assembling components made by someone else into an unpatented design you're safe there. If you wanted to build your own harddrive or motherboard, then you'd be in tro

If you are unsatisfied with the terms of service, then don't buy the product in the first place. Warranties are, in many areas, at the discretion of the seller, and not mandated by law.

I like having the ability to tinker with stuff I buy too, and install custom firmware or OS's or whatnot, although I can reasonably agree that if I'm going to retain any rights to be able to do anything that I want to products that I buy, including altering its

Well, personally, I'd class mid-2003 through mid-2007 as the "mid-00's", so submitter is fine in my book, but since you are splitting hairs, maybe he was referring to Google's original purchase of Android Inc. [businessweek.com] which happened in August 2005? I'd saying being bought by Google, at a time when there was a fair bit of speculation that Google was interesting in mobile, would get a lot of people started with finding out something about this "Android" thing.

To elaborate on why open-source hardware is hard, and why making a single phone will cost you over $10K.

Why open-source software works is:Widely available repository of code.Many people able to review it, or sections of it, and understand it.Ease of submitting tested patches.

Hardware has problems that don't really fit well with this.The open schematic is the trivially easy part, and not really a problem.(though in practice, you need a schematic with copious links to design documents, which isn't well solved by open tools).

The number of people who can review it is rather smaller - as you can't open up a c file, and see a clear error or awkwardness in code that can be edited.

For all but the most basic errors, you are going to have to sit down and read several hundred pages of hardware documentation about how the chips in question work, in addition to having in-depth knowledge about the circuit design, and costings of likely changes.

Now, you've done this, and generated a patch that you think (for example) lowers the supply current by 1%.

Compile - test.On a PC, this takes a couple of minutes.

For something of a smartphone class, a one-off PCB may cost several hundred dollars. Then the parts will cost another several hundred dollars in small quantities, as well as being difficult to obtain.Now, you have to solder the parts onto the board, which is a decidedly nontrivial thing - and if you decide you want someone else to do this, it's probably another several hundred dollars.

So, you're at the thick end of a thousand dollars for a 'compile'.

Now, you boot the device, and it exhibits random hangs.

Neglecting the fact that you are going to need several hundred to several thousand dollars of test equipment, you now have to findthe bug.

Is it:A) The fact that unlabled 0.5*1mm component C38 is in fact 20% over the designed value, as the assembly company put the wrong one in.B) C38 has a tiny bridge of solder underneath it that is making intermittent contact.C) The chipmaker for the main chip hasn't noticed that their chip doesn't quite do what they say it will do, and the datasheet is wrong.D) You missed a tangential reference on page 384 of the datasheet to proper setup of the RAM chip, and it is pure coincidence that all models up till now have booted.E) Because you're ordering small quantities, you had to resort to getting the chips from a distributor who diddn't watch their supply chain really carefully, and your main chip has in fact been desoldered from a broken cellphone.F) Though the design of the circuit is correct, and the board you made matches that design, and all the parts are correct and work properly, the inherent undesired elements introduced by real life physics means it doesn't work.G) A completely random failure of a part that could occur with even the best design, and best manufacture.

G - may mean that it's worthwhile making two or more of each revision - which of course boosts costs.

Hardware is nasty.

This gets a lot less painful of course for lower end hardware. For very limited circuits, which can be done on simple inexpensive PCBs, and be easily soldered at home - costs of a 'compile' can be in the tens of dollars, or even lower.

FPGAs are essentially not used in mobile phones, for power efficiency and other reasons.Nor is opening up the code for any hardware you can get source for (nothing) useful, as making your own chips from them will cost at best many tens of thousands.

FPGAs are always going to be more expensive, and less power efficient for given tasks than comparable single function silicon.There is, even in the most efficiently implemented design in a FPGA, considerable area wasted by interconnects, and suboptimal use of resources.

It's like making a working device from lego.Yes, you may be able to do it, but if you make it as one moulded piece, it's going to be lots cheaper.

As an engineer who has done embedded hardware design for the past 25 years, I'd say your prices are off by a factor of 10 on the low side, at least. Other than excessive optimism on cost, though, you're right on the money on every other point.

Patents won't stop you from building a couple of devices in your garage; but, they'll be as useful as bricks. You have to get the radios FCC certified and then run the gauntlet of certification hoops to convince the cell provider to allow you to connect your garage built device to their network. There are radio modules available that would speed up the process -- basically pre-certified modules that handle the entire cell phone function. You might be able to do it using these... But they're huge, relatively speaking. You won't be building a sexy device like a Galaxy S, iPhone, or Droid with them.

We've done it on equipment we're designing for deployment; but, I have the advantage of being able to call Verizon and say, "I'm Confused, an electrical and software engineer with Big-Company. I am using a cell radio module from A_well_known_manufacturer. I need to activate it on our account for testing..." And, by the way, we won't do that until we're pretty damn sure the thing will work right.

As an engineer, I thought I would point out there are two ways we deal with patents:

Method 1: Once you have an idea, do a thorough patent search and verify your idea does not appear to violate any patents. If it does, re-design the widget so it avoids the patent.

Method 2: Ignorance is bliss. Design and build it.

I can tell you, if you use method 1 you will need an enormous staff and risk never getting anything done. Despite it all, you still won't be safe because someone will come along with patent claims anyway, even though you did a most thorough due diligence search. I'm not saying you ignore patents, that would be unethical. Company I work for has a record of the patents related to our products that we have been made aware of. It just doesn't make a lot of sense to go looking for trouble.

1 also doesn't work because a lot of patents now are so broad they can't be worked around. Often so broad they'd get thrown out in court, after you'd spend a few hundred thousand dollars in legal fees.

At my (prominant semiconductor) company, we have been specifically urged by Legal to NEVER do patent searchs. Since the penalty for knowingly infringing is triple that for unknowing infringement, this policy apparently makes some kind of legal sense.

Method 1: Once you have an idea, do a thorough patent search and verify your idea does not appear to violate any patents. If it does, re-design the widget so it avoids the patent.

This highlights the problem with the obviousness criteria as used by the patent office. If you have an idea of your own and then have to search to be sure someone else didn't have that same idea to then workaround it, its clear that idea is obvious. If it weren't obvious, you, as a skilled practitioner of your profession, wouldn't be able to simply think of it out of nowhere, you'd have to read the patent to actually figure out how that invention works, or otherwise go do some serious research.

The patent system wouldn't be the insensate thing it is today if the obviousness criteria was focused on actual obviousness. A legal recourse against an obvious patent should be something very fast and very cheap, something akin to a judge ordering 10 random engineers in the field to read the patent under dispute in the morning, asking them whether it was obvious in the afternoon, and 7 of then replying "yes", presto, patent invalidated. Alas, it ain't so...

... if after this you see any lawyers alleging breach of patent, kill the[m].

And you can do this without even worrying about violating a "business method" patent. After all, there is prior art going back centuries. Thus, in Henry VI Part 2, the character Dick says "The first thing we do, let's kill all the lawyers." That dates to 1591, which should be old enough that it's now public domain.

GeeksPhone [wikipedia.org] are doing pretty much what TFA claims is impossible. Why haven't they been sued? Too small to be worth the trouble? Jolla [wikipedia.org] (50 employees) aren't exactly a behemoth either. OK, so Jolla haven't released anything yet and thus can't be sued, but the fact that the company was formed implies that they don't consider the 250,000 patents a problem. (Yeah, I know, not Android, but the same principles apply.)

Jollas angle is the the meego stack was guaranteed by Nokia/Intel to be free to use - and they intend to avoid things like rubberbanding of lists etc(though that was recently invalidated as a patent?) to avoid sued for UI - but the main angle is the meego base(I've heard the ceo give two talks and this is about as much solid info as he was giving in those talks.. and apparently that they're buying the hw development and manufacture from chinese).

It would seem that patents are company-centric when they really should be consumer-centric. If we change to the consumer view paradigm, a lot of the idiocy of patents would disappear. There really should be just one question for a patent to be viable: How does your exclusive retention of this concept and the implementation of it benefit the consumer? What we have is the exact opposite. If we theoretically have laws and government to aid and support people, then the entire patent system and paradigm is 180 d

Patents should not be consumer centric. The idea of a patent is that you get to benefit from your novel idea by having exclusive rights for a period of time. The patent system is intended to benefit those with good ideas and the companies that invest in bringing those to life.

Sitting on patents should invalidate them. Profit for the creator should be the purpose of a patents. If you hold a patent, you should be actively working towards producing the product that you patented. Software patents are a per

Oh, come on. The "patent system is screwed up" argument started with software and algorithms, and continued with patents on DNA and organisms. And yeah, in those cases it was pretty clear the patent system wasn't working as intended. I'm with you on that one. But now here at Slashdot we're upset that ingenious physical devices, devices that took years of work to design and whose operation is by no means obvious, should not be patented.

There can be no question that something like a SAW filter is a new, non-obvious, useful device. So at this point, you're arguing that patents should not exist at all. And I won't follow you there.

You really have no idea how much brainpower went into designing the individual components within a cell phone. An iPhone is a miracle the first time you see one, then it's a handy tool, and then your familiarity makes it seem blindingly obvious. But tens of thousands of people spent billions of person-hours figuring out how to build the thousands of unique devices inside. And I think those people should receive some reward for their efforts.

Are you saying those people didn't get compensated? We're not talking about people working in their garage late at night. These are paid employees of a company making very high salaries. Really they don't even get compensated for their ideas as the company owns the rights.

The reality is that you can't do this kind of work without lots of capital, maybe some basic research but what's that worth? You can't do anything with the idea unless you can commercialize it, meaning lots of capital.

I get it - you came up with it first... congrats. So instead of me doing it just a slightly different way which falls under your patent (even though I had no knowledge of what you were doing), you want to play monopoly.

And we wonder why your average joe isn't pushing out tons of patents - major companies are. And if mister average joe is a Tesla or Franklin, in these days, they would be put away in a secret compound owned by major company.

The idea that patents are what stops small competitors from producing smart phones is just not true. To make a commercial smart phone, you have to be able to do it at a cost and quality level that is similar to what big electronics manufacturers can do. There are many reasons why a small shop can't do that.

You would have to hire several electronics engineers and mechanical engineers who are as skilled at packing a lot of functions into a small package as those employed by Apple, Motorola, Samsung and HTC

It would be risky. It would require a good amount of capital. There would be a good chance of failure. Yet there might also be a chance of success with enough upside to make it worth it! And every unit the company sells successfully is a benefit to the consumer that bought it.

I once thought about creating a matlab implementation for a specific domain and use case. After looking at the patents which Mathworks holds, i stopped that. Many of these are for sure trivial, but if you would place somthing which they consider competition, you will not survive the lawsuit.

Over 250,000 patents? That's probably more security than a medieval fortress with a thick, heavy steel fence and barbed wire, a surrounding moat and drawbridge, snipers, and dozens of guards operating turret guns and cannons. I'm sorry, but that's just uncalled for for something as simple as a god damn phone. If that's not stifling the fuck out of innovation, then I don't know what is. How the hell has this come to be without the government seeming to even give a fuck, even with the heavy lobbying of co

Software-defined radio is not some magic wand you wave and poof! wireless telecom. It eventually gets down to physical RF hardware. And when that hardware operates in the gigahertz band (which it will have to do unless you want the FCC on your ass), you need high-tech RF transceiver hardware like SAW filters and gigahertz amplifiers, which are patented *in their own right* as electronic components, whether they're in a phone or not.

Too many computer programmers are used to accomplishing miracles in software, and they forget that somewhere in the background, there's an electrical engineer that made their miracle possible.

I suspect, but can't verify, that most of the "250,000 patents" protecting your average smartphone are for not-phone-specific elements within it. Not sure what you mean by "patents on these devices [are] simpler": they may be available off the shelf, but the price tag is based on the fact that in the end someone's got to pay the patentor.